United States District Court, S.D. Texas, Galveston Division
CHRISTOPHER A. WAGNER, Petitioner,
LORIE DAVIS, Respondent.
ORDER OF DISMISSAL
C. HANKS JR. UNITED STATES DISTRICT JUDGE
Christopher A. Wagner (#65237) is incarcerated at the
Chambers County Jail. He has filed a petition for habeas
corpus (Dkt. 1) regarding criminal charges currently pending
against him. After considering all the pleadings and
applicable law, the Court concludes that the petition must be
DISMISSED without prejudice for reasons that
Wagner is a pretrial detainee in the Chambers County Jail.
Publicly available online records from Chambers County
reflect that that Wagner was indicted for evading arrest or
detention with a motor vehicle under Texas Penal Code §
38.04(b)(2)(A) and that pretrial proceedings are ongoing.
See Case Information for State of Texas v.
Christopher Asher Wagner, No. 19DCR0124, 344th District
Court for Chambers County (available at
Portal/Home/Dashboard/29) (last visited Aug. 30, 2019).
Wagner is represented by court-appointed counsel
(id.). Currently, docket call is set for September
18, 2019, at 9:00 a.m (id.).
petition (Dkt. 1) brings claims regarding the criminal
prosecution against him in No. 19DCR0124. He claims that his
due process rights have been denied because he has not been
allowed access to court, that he is wrongfully incarcerated
based on a falsified indictment, that evidence has been
destroyed, that he is the victim of “official
oppression,” and that the judge presiding over his
criminal case has improperly failed to dismiss the case. He
seeks his immediate release and financial restitution.
recently filed a civil rights complaint in this Court, Civil
Action No. 3:18-0119, which also brings claims regarding his
filed his habeas petition on a form used for petitions that
challenge a state conviction under 28 U.S.C. § 2254.
Because Wagner is a pretrial detainee, his petition is
governed by 28 U.S.C. § 2241, which authorizes a federal
writ of habeas corpus if a prisoner can show that he is
“in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. §
pretrial detainee may seek a federal writ of habeas corpus
under § 2241 only if the following two prerequisites are
met: the petitioner must be in custody for purposes of §
2241(c); and the petitioner must have exhausted available
state remedies. See Dickerson v. Louisiana, 816 F.2d
220, 224 (5th Cir. 1987); see also Braden v. 30th
Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973).
Although Wagner meets the first prerequisite for review
because of his confinement at the Chambers County Jail, he
does not meet the second prerequisite because it is apparent
from the pleadings that he has not exhausted available state
court remedies before seeking relief in federal court.
exhaust remedies in Texas, a petitioner must present his
claims to the Texas Court of Criminal Appeals by filing an
appeal followed by a petition for discretionary review or by
filing an application for a writ of habeas corpus. See
Myers v . Collins, 919 F.2d 1074, 1076 (5th Cir. 1990)
(exhaustion may be accomplished directly in a petition for
discretionary review or collaterally in a habeas corpus
petition). In the pre-conviction context, a Texas prisoner
confined after a felony indictment may file an application
for writ of habeas corpus pursuant to Article 11.08 of the
Texas Code of Criminal Procedure with the judge of the court
in which he is indicted. See Tex. Code Crim. Proc.
§ 11.08. If the trial court denies habeas relief under
Article 11.08, the prisoner’s remedy is to take a
direct appeal to an intermediate appellate court and then
petition for discretionary review by the Texas Court of
Criminal Appeals. See, e.g., Ex parte
Twyman, 716 S.W. 2d 951, 952 (Tex. Crim. App. 1986)
(citing Ex parte Payne, 618 S.W.2d 380, 382 n.5
(Tex. Crim. App. 1981)).
acknowledges that he has not presented his allegations for
review by the Texas Court of Criminal Appeals (Dkt. 1, at
3-4). He does not allege facts showing that this remedy is
unavailable to address his constitutional claims. Nor does he
otherwise show that exceptional circumstances are present or
that federal court intervention is warranted. See Younger
v. Harris, 401 U.S. 37, 44-45 (1971) (explaining that
federal courts cannot interfere in state criminal proceedings
unless extraordinary circumstances are present).
Court therefore concludes that the pending federal habeas
petition must be dismissed without prejudice for lack of
corpus actions under 28 U.S.C. § 2254 or § 2255
require a certificate of appealability to proceed on appeal.
28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003). Rule 11 of the Rules Governing
Section 2254 Cases requires a district court to issue or deny
a certificate of appealability when entering a final order
that is adverse to the petitioner. Where the petitioner is a
prisoner in state custody, this requirement ...